A young woman’s future hangs in the balance. The crime is serious. If convicted, she’ll serve a long prison term. Guilty or not guilty? There’s not a lot of gray area — choose lever A or lever B.

We make countless decisions every day and most are rather mundane: “What do I eat for breakfast?” “Do I wear the plaid shirt or the green one?” Not only are these relatively minor decisions, but there are always other readily available options to choose from.

Going back to the young woman’s case — we had spent the entire month of October listening to all of the evidence and, as a jury member, I was going to participate in deciding this person’s fate. We listened to several doctors testify. Medical experts were flown in from New York City, Chicago and Dallas. We listened to several character witnesses — the neighbors, friends and family members of the defendant. We listened to the defendant’s pleas of innocence and the plaintiff’s cries of her guilt. We poured over reams of physical evidence.

The judge explained to us that a jury’s decision must be based on evidence presented at trial and not to base our verdict on our gut feelings or intuition or personal likes and dislikes.

He said evidence can be classified into three categories:

  • Eyewitness testimony
  • Expert witness testimony
  • Circumstantial evidence

During his jury instructions, I couldn’t help but think the same three forms of evidence are what I base my tree care recommendations on.

Read More: Don’t Diagnose Tree Diseases Over the Phone

The judge told us eyewitness testimony is exactly as it sounds. Someone claims they saw or heard whatever it is they claim they witnessed. Your confidence in their testimony will depend on whether or not you believe the witness is telling the truth, or whether or not you think they’re confused or incorrect about what they see.

Expert witnesses, the judge further explained, are court-recognized experts in their field. He warned us that for this trial, several medical experts would testify and that some of their testimony may be difficult to follow. The judge explained we should listen carefully to them for we would be required to weigh how relevant the information is.

The judge told us the third set of evidence — circumstantial — can best be explained by the following illustration.

“You wake up in the morning, pull your window curtains open, and look outdoors to find a fresh coat of snow on the ground. If you looked out that same window when you went to bed the night before and there was no snow on the ground, you may assume correctly it snowed sometime during the night. If you looked out your window and saw no tracks in the snow across your front lawn at eight in the morning and you then returned one hour later and saw tracks, you can be certain that someone walked across your front lawn between eight and nine o’clock. You may not know who that person is, but you can be rest assured someone crossed your lawn between those hours.”

As I mentioned, as an arborist I base my recommendations on the same three principles:

Eyewitness testimony: A client tells me they see or hear an issue that causes them alarm. The tree, they say, has been dropping limbs, creaking in high winds, dropping leaves or showing some other symptom. I make my recommendations based in part on how reliable I think their description is.

Expert witness testimony: I also base my recommendations on the experts I’ve learned from, going so far as to sometimes cite Claus Mattheck’s principles of tree biomechanics or Dr. Shigo’s work on tree decay and/or CODIT. I may or may not find their work relevant to my particular situation. I may bring in another arborist for a second opinion.

Circumstantial evidence: The third leg of the decision-making triad, circumstantial evidence, are the symptoms I see – or don’t see. There may be evidence of past damage. I may see similar problems in nearby trees. I may be lucky enough to see the symptoms firsthand. If I can see the symptoms for myself or clear evidence of past damage, it’s a strong indicator to be considered.

Back to the court case.

Judge Kolenda had been chief circuit judge for 27 years. I’m sure he’d seen many a jury wrestle over a verdict. Since a judge can’t unduly influence a decision, he didn’t tell us what verdict he would have reached or his opinion of what form of evidence he prefers until after the trial.

The jury foreman read our verdict to a packed courtroom. Judge Kolenda then turned to the gallery and spoke to the defendant, the plaintiff and their families. He gave some final instructions to the attorneys, and asked the jury to wait for him in the jury room. He said he had a few post-trial instructions.

In the jury room, behind closed doors, Judge Kolenda listened to each of us explain his or her verdict. We asked him – pleaded, really — what would he have decided, for even after five gut-wrenching days of deliberations, we never reached a unanimous decision. Six jurors had voted guilty. Six voted not guilty. The trial was declared a mistrial — only the second one in Judge Kolenda’s career.

To our consternation, he answered, “Juries ask me for my verdict all the time. I’m truly sorry, but I am not allowed to tell you, or anyone else, what my verdict would be. What I am allowed to tell you, however, is that all things being equal, I give more weight to circumstantial evidence than to eyewitnesses. Frankly, eyewitnesses can lie or be confused. And even after many years of sitting on the bench, it can be difficult to tell who is telling the truth.

“Expert witnesses do help,” he continued, “but you always have to remember they are being paid by the side they’re hired by.

“Circumstantial evidence, however, never lies.”

A client’s description of a tree problem may point me in the right direction. But, in my experience they’re often confused or incorrect about what they think they see.

The experts I’ve learned from certainly help, whether they be fellow arborists or the work of scientists or consultants I’ve studied.

With that said, it’s the broken limbs, fresh sawdust, cracks, splits, hollows, insects or diseases I see that provide me with indisputable evidence. It leaves evidence as clear as tracks in the snow.

I believe Judge Kolenda was correct. Much weight should be placed upon circumstantial evidence. All three forms of evidence need a thorough consideration. But as the seasoned judge once told me, “Circumstantial evidence never lies.”

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